Thursday, March 31, 2016

After big verdicts: Has Johnson & Johnson lost its way? //NJ LawJournal

Image result for johnson and johnson
After big verdicts: Has Johnson & Johnson lost its way? //NJ Law Journal
by Charles Toutant and Max Mitchell // NJ Law Journal

Plaintiffs lawyers haven been winning a steady stream of big products liability verdicts against Johnson & Johnson recently, and some have suggested the company's size makes it a bigger target for litigation—and also more willing to take cases to trial.

All the litigation hasn't kept Wall Street from taking a liking to Johnson & Johnson—several brokerages upgraded their ratings on the company's stock in recent weeks, including Goldman Sachs, which changed its prognosis for Johnson & Johnson to "neutral," after rating it "sell" for 14 months. But the heavy burden of litigation facing the company may have some questioning the company's direction and management.

On March 17, a federal jury in Dallas ordered the company to pay $502 million to five plaintiffs who claimed the company's Pinnacle artificial hips failed prematurely. And on Feb. 22, a state jury in Missouri returned a $72 million verdict in the case of a woman whose death from ovarian cancer was linked to long-term use of Johnson & Johnson's talcum powder products. The company is expected to appeal both verdicts.

On another front, Johnson & Johnson's Janssen Pharmaceuticals has been hit with plaintiff verdicts in three of the four cases tried before Philadelphia juries in the past year concerning a tendency by antipsychotic drug Risperdal to cause male users to develop breasts. The company has seen verdicts of $500,000, $2.5 million and $1.75 million in those cases. Also in Philadelphia, the company was hit with verdicts of $12.5 million in January and $13.5 million in February over its pelvic mesh products. And in the fall, the company faces the first trial in multidistrict litigation in Philadelphia of 217 suits claiming that Tylenol causes liver damage.

In addition, on March 29, the New Jersey Appellate Division upheld an $11.1 million verdict against Johnson & Johnson subsidiary Ethicon Inc. in the first bellwether pelvic mesh trial in New Jersey state court.

Erik Gordon, who studies drug companies as an assistant professor at the University of Michigan's Ross School of Business, said he sees a departure from the vow by Johnson & Johnson's founders to put patients' interests ahead of those of stockholders.

"J&J seems to have changed from a company that lived its famous credo of putting patients first to a company that puts 'hit the sales numbers' first and cites the credo, with feeling, when it is in a public relations mess related to allegedly defective products," Gordon said.

The root cause of the verdicts lies in the conduct of Johnson & Johnson, said Shanin Specter of Kline & Specter in Philadelphia, who recently tried two pelvic mesh cases against the company to verdict for a total of $26 million in jury awards.

"Johnson & Johnson is being told by juries that they have acted negligently and recklessly more than any other company in the United States," Specter said. "Their internal documents demonstrate that they are a company that has lost its way, and they are putting sales over safety."
Read more:

Wednesday, March 30, 2016

GM Wins Defense Verdict In 2nd Ignition-Switch Trial - Law360

BREAKING: GM Wins Defense Verdict In 2nd Ignition-Switch Trial - Law360

by Cara Salvatore

Law360, New York (March 30, 2016, 11:23 AM ET) -- 

General Motors on Wednesday won the second bellwether trial in the continuing fight over its defective ignition switches, as a New York federal jury found that GM cars were unreasonably dangerous but did not find that plaintiffs' injuries were caused by their car, a Saturn roadster.

The trial, selected by GM as a test of some of the weaker claims in a pool of hundreds of lawsuits, had been closely watched after a first bellwether disintegrated when the plaintiff was accused of lying. And this one wasn't without its own drama: Over its two-plus weeks, two separate jurors were dismissed for sleeping.

The verdict came only after the remaining eight sent a flurry of notes indicating confusion with the flow of the complicated verdict form.

Plaintiff Dionne Spain, the owner of a blue 2007 Saturn Sky, blamed GM's now-infamous ignition-switch design defect for her crash on the Crescent City Connection bridge in New Orleans in January 2014 as she and passenger Lawrence Barthelemy drove across it to go to a poetry reading.

Police and GM's reconstructionists blamed black ice; Spain and Barthelemy said the Sky suffered from the same ignition-switch defect that has caused scores of deaths. A small metal plunger that was supposed to keep the ignition slotted into the “Run” position was too weak and could be turned off by inertia from road bumps or driving maneuvers or by jostles from a driver's knee, an industry-rocking report called the Valukas report found amid GM's 2014 recalls.

On any occasion when the weak switch flipped backward to "Accessory," the engine would cut out, airbags would be disabled, and power steering and power brake assist would stop, as would, of course, the ability to accelerate to keep up with traffic.

GM presented a mountain of medical records during the trial suggesting that Spain and Barthelemy did not sustain the injuries they claimed to have from the crash. Both suffered back pain before and after the crash, but GM presented many records suggesting that the back pain after the crash was not purported to have stemmed from it. Spain was a medical receptionist, Barthelemy a barge washing supervisor.

U.S. District Judge Jesse Furman had dismissed a handful of claims shortly before the trial, and dismissed another after the defense rested its case.

Tuesday, March 29, 2016

In Emails, N.H.L. Officials Conceded Concussion Risks of Fights - The New York Times



Commissioner Gary Bettman in January. Emails among N.H.L. officials, unsealed in a court battle, acknowledge that so-called enforcers frequently use pills “to ease the pain.” CreditMark Humphrey/Associated Press

The N.H.L.’s top officials have privately acknowledged that fighting could lead to concussions and long-term health problems, including depression, and that so-called enforcers frequently use pills “to ease the pain,” according to emails unsealed during a continuing court battle with former players.
The exchanges, mostly between Commissioner Gary Bettman and his top lieutenants in 2011, contradict what the league has said publicly and what it has argued in defending itself from a class-action lawsuit brought by dozens of former players over the effects of concussions.
After three N.H.L. enforcers died between May and August 2011 — all either by suicide or accidentally while struggling with personal problems — league officials contemplated in a series of emails whether to eliminate fighting from the league.
“An interesting question is whether being an NHL fighter does this to you (I don’t believe so) or whether a certain type of person (who wouldn’t otherwise be skilled enough to be an NHL player) gravitates to this job (I believe more likely),” Bettman wrote in an email on Sept. 3, 2011.
The email was sent to Deputy Commissioner Bill Daly and to Brendan Shanahan, then the league’s senior vice president for player safety and hockey operations. Shanahan, now president of the Toronto Maple Leafs, started the email chain by sharing a link to an article in the newspaper The Globe and Mail of Toronto, with the headline “Getting Rid of Hockey’s Goons.”

New FDA Rules Put Onus On Doctors To Curb Opioid Abuse - Law360

New FDA Rules Put Onus On Doctors To Curb Opioid Abuse - Law360

by Sindu Sindhar

Law360, New York (March 28, 2016, 10:39 PM ET) -- The U.S. Food and Drug Administration's latest efforts to address what public health officials consider an epidemic of opioid abuse put the onus squarely on doctors to limit prescriptions of the controversial painkillers, in what some attorneys say is a tacit acknowledgment of the agency's difficulty in policing what drugmakers and pharmaceutical sales representatives actually tell doctors about opioids.

The FDA last week announced that it is requiring stronger warnings on immediate-release opioids, to alert doctors and patients to their risks for "risks of misuse, abuse, addiction, overdose and death," according to the agency. The stronger warnings also include a so-called boxed or black box warning, meant to alert patients to the most serious side effects, highlighting the risks of taking opioids during pregnancy. Prolonged use of immediate-release opioids — which can be taken up to six times a day — during pregnancy can result in children born with potentially fatal opioid withdrawal, the agency said. The agency had previously required such warnings for extended-release opioids, which pack higher doses than their immediate-release counterparts, and can be taken only up to twice a day.

The move followed a similarly prescriber-focused approach by the U.S. Centers for Disease Control and Prevention, which cautioned doctors to limit prescribing opioids for shorter durations of up to three days. One of the striking features of the FDA's approach here is that it doesn't really ramp up the agency's scrutiny of how drugmakers discuss opioids with doctors, attorneys say.

Black box warnings typically require drugmakers to highlight these labeled risks to doctors when promoting them, but in practice, the agency has few means to supervise what pharmaceutical sales representatives are telling prescribers about their opioids, attorneys say. Significantly, the FDA has not even required opioid drugmakers to send out so-called "Dear Doctor" letters, which the agency usually tells pharmaceutical companies to send to doctors to inform them of new safety issues.

"I don’t think [the new rules] are toothless with respect to changing prescribing habits," said Pete Kaufman of Panish Shea & Boyle LLP. "However, if it's intended to affect manufacturers' advertising practices or the way they market to physicians, I doubt it will be all that effective."

The agency did not indicate why it chose not to require drugmakers to send out letters to doctors alerting them of changes, but spokeswoman Sarah Peddicord told Law360 on Monday that the agency has worked to inform doctors about the new warnings through a number of means.

Monday, March 28, 2016

DOJ asks court to approve $20 billion Deepwater Horizon settlement - Petro Global News

DOJ asks court to approve $20 billion Deepwater Horizon settlement - Petro Global News

The U.S. Department of Justice asked a federal judge on Tuesday to approve the $20 billion Deepwater Horizon settlement reached with BP last year.
In a statement, the DOJ said it asked the federal court in New Orleans to approve a proposed settlement reached in October 2015 to settle the government’s civil claim under the Clean Water Act and natural resources damage claims under the Oil Pollution Act.
U.S. District Court Judge Carl Barbier upheld a ruling in November 2014 that found BP guilty of “gross negligence” leading up to the Deepwater Horizon accident.

Fla. Justices Lower Smokers' Hurdle For Engle Class Eligibility - Law360

Fla. Justices Lower Smokers' Hurdle For Engle Class Eligibility - Law360

by Carolina Bolado

Law360, Miami (March 24, 2016, 3:21 PM ET) -- One week after the Florida Supreme Court expanded punitive damages for Engle progeny plaintiffs, tobacco companies were dealt another blow Thursday as the court ruled that a smoker did not need an official diagnosis before the cutoff date for membership in the original Engle class.

In a 5-2 decision by Justice Barbara Pariente, the state's highest court affirmed a $3.2 million jury award for Pamela Ciccone, whose husband George Ciccone died of lung cancer in 2002, and said she is eligible for membership in the decertified class because he was clearly showing signs of peripheral vascular disease or PVD, a smoking-related disease that thins the arteries and causes poor circulation in extremities, before the 1996 cutoff.

The court said that the original Engle ruling held that the “critical event” to establish membership in the class was “when the disease or condition first manifested itself,” a phrase that had been interpreted in different ways by two different appeals courts, in favor of inclusion of nondiagnosed smokers by the Fourth District Court of Appeal in Ciccone's case and exclusion by the First District Court of Appeal in another suit.

But the Supreme Court resolved the conflict by concluding that “manifestation” is “the point at which the plaintiff began suffering from or experiencing symptoms of a tobacco-related disease or medical condition.”

“Under the definition we adopt, the plaintiff does not need to have been formally diagnosed or know that the symptoms were tobacco-related prior to the 'cutoff date' for class membership,” the court said.

OTHERWISE: Sen. Hatch's Op-Ed: `Let Voters Decide' dodges responsibility for choosing a Scalia Successor- The New York Times

OTHERWISE: Sen. Hatch's Op-Ed: `Let Voters Decide' dodges responsibility for choosing a Scalia Successor- The New York Times

Sunday, March 27, 2016

On C.T.E. and Athletes, Science Remains in Its Infancy - The New York Times

On C.T.E. and Athletes, Science Remains in Its Infancy - The New York Times

by Benedict Carey

BEDFORD, Mass. — In a small room banked by refrigerators of preserved brains, a pathologist held a specimen up to the light in frank admiration. Then it was time to cut — once in half and then a thick slice from the back, the tissue dense and gray-pink, teeming with folds and swirls.
It was the brain of a professional running back.
“There,” said Dr. Ann McKee, the chief of neuropathology at the V.A. Boston Healthcare System and a professor of neurology and pathology at Boston University’s medical school, pointing to a key area that had an abnormal separation. “That’s one thing we look for right away.”
Over the past several years, Dr. McKee’s lab, housed in a pair of two-story brick buildings in suburban Boston, has repeatedly made headlines by revealing that deceased athletes, including at least 90 former N.F.L. players, were found to have had a degenerative brain disease called chronic traumatic encephalopathy, or C.T.E., that is believed to cause debilitating memory and mood problems. This month, after years of denying or playing down a connection, a top N.F.L. official acknowledged at a hearing in Washington that playing football and having C.T.E. were “certainly” linked.
His statement effectively ended a very public dispute over whether head blows sustained while playing football are associated with the disorder. But it will not resolve a quieter debate among scientists about how much risk each football player has of developing it, or answer questions about why some players seem far more vulnerable to it than others.

Saturday, March 26, 2016

Meet Ken Feinberg - the Master of Disasters // NY Observer

Wherein I get some "ink". - gwc
Meet Ken Feinberg - the Master of Disasters //NY Observer
“It’s certainly a triumph of branding. There’s no doubt about that,” said George Conk, a law professor at Fordham University and an expert on torts law. “He’s a dominant presence.”
"His real innovation may have been realizing that if you want a Resolution, you have to make sure everyone participates in a claims program. This means “you’ve got to offer just about everybody something, including people who have weak claims,” said Mr. Conk, the Fordham University professor. “You can’t pay fraudulent claims, but you can pay weak claims."

Thursday, March 24, 2016

ABA Opposes Med-Mal Cap in Federal bill //TortsProf Blog

TortsProf Blog

The ABA has sent a letter to House Judiciary Committee chairman Bob Goodlatte voicing opposition to: (1) a $250,000 cap on noneconomic damages, (2) several liability, and (3) a provision allowing judges to reduce contingent fees for plaintiffs' attorneys. The ABA Journal has the story, including a pdf of the letter.

Wednesday, March 23, 2016

The Hogan Verdict

HERE is commentary by Michigan Law Professor Len Niehoff.

Gawker seems to have a good argument that Hogan knew he was being taped, and had no reasonable expectation of privacy. - gwc

The Hogan Verdict

by Nick Denton // Gawker Media

The decision by a Florida jury to grant $140 million in damages for a story on about a Hulk Hogan sex tape was extraordinary. The number is far larger than even the plaintiff himself had asked for in relief. It’s a huge pay-day for an indiscretion that would have been quickly forgotten, one among many in the professional wrestler’s personal life.

The enormous size of the verdict is chilling to Gawker Media and other publishers with a tabloid streak, but it is also a flag to higher courts that this case went wildly off the rails. The plaintiff’s lawyers, with the occasional assist from our witnesses, successfully painted Gawker as representative of an untrammeled internet that good and decent people should find frightening and distasteful. Emotion was permitted to trump the law, and key evidence and witnesses were kept from the jury.

A state appeals court and a federal judge have already held repeatedly that the 2012 commentary and short video excerpt, which joined an existing conversation and explored the public’s fascination with celebrity sex tapes, were newsworthy. We have had our day in trial court, and we lost. We will have our day back in appeals court, and we will be vindicated.

Hogan did not sue us, as he has claimed, to recover damages from the emotional distress he purportedly experienced upon our revelation in 2012 of a sexual encounter with his best friend’s wife, Heather Cole (then Heather Clem). It turns out this case was never about the sex on the tape Gawker received, but about racist language on another, unpublished tape that threatened Hogan’s reputation and career.
Moreover, the basis of his claim that he had a reasonable expectation of privacy during his sexual encounters with Heather Cole, then Bubba’s wife, was that Hogan didn’t know he was being filmed. From the documents released by the appellate court, it is now clear that this is contradicted by multiple statements Bubba made to FBI agents asserting that Hogan knew full well that Bubba had wired his bedroom for video and was filming. We were barred from presenting that crucial evidence to the jury, or asking Bubba how much his most intimate friend knew about the couple’s sexual practices.

Hogan initially blamed his friend for the tape’s release, but later settled his lawsuit against Bubba for the sum of $5,000 and a pledge to play the role that Hogan needed him to in the litigation against Gawker. Bubba complied, asserting his Fifth Amendment rights against self-incrimination to avoid answering our questions about Hogan’s role in the tape’s genesis; the trial court allowed him to keep his end of his settlement bargain and prevented us from putting him on the witness stand.

Monday, March 21, 2016

BP to blame for payment delays, not Deepwater Claims Administrator Juneau | Legal Examiner New Orleans

BP to blame for payment delays, not Deepwater Claims Administrator Juneau | Legal Examiner New Orleans

by Tom Young

Recently, Florida Senator Bill Nelson penned a letter to Deepwater Horizon Claims Administrator Patrick Juneau urging Mr. Juneau to speed up claims analysis. While the resolution of individual and business economic loss claims associated with BP’s disaster has been much too slow, the fault lies squarely at BP’s feet, not Mr. Juneau’s.

BP’s Brilliant Subterfuge

Judge Barbier of lead BP attorney Rick Godfrey (pictured above): “If anyone is trying to rewrite the Settlement Agreement, it is counsel for BP.”

In 2012, with BP’s enthusiastic urging, Claims Administrator Juneau and his staff processed and paid (if eligible) most claims within 60-90 days of filing. The company was all too happy to promote the program’s efficiencies as it sought judicial approval for the compact. Then, once the Settlement was officially blessed by Judge Barbier, BP went about attempting to systematically dismantle it.

Objective number one for the company was to slow down payments by any means possible. This included cooking up largely unfounded allegations of fraud and filing losing lawsuits that BP pressed all the way to the Supreme Court of the United States (which promptly told the company to go pound sand).

BP’s course reversal after Settlement approval was not lost on Judge Barbier:

“[I]f anyone is attempting to rewrite or disregard the unambiguous terms of the Settlement Agreement, it is counsel for BP. Frankly, it is surprising that the same counsel who represented BP during the settlement negotiations, participated in drafting the final Settlement Agreement, and then strenuously advocated for approval of the settlement before this Court, now come to this Court and the Fifth Circuit and contradict everything they have previously done or said on this issue. Such actions are deeply disappointing.” – Judge Barbier, December 24, 2013

Judge Carl Barbier questioned BP’s motives, saying the company’s position was “deeply disappointing.”

I have written before about BP saying one thing while doing the opposite. Unfortunately for the people of the Gulf, such is the company’s modus operandi.

Saturday, March 19, 2016

Why the GOP’s Merrick Garland strategy could be a disaster for Republicans -

Why the GOP’s Merrick Garland strategy could be a disaster for Republicans -

by Andrew Koppelman (Northwestern Law School)

***The united front against Garland could change that. You can imagine one Democratic line of attack: They would declare that the Republican candidate wants to trust Trump to fill a Supreme Court vacancy – and that voters have to decide whether they love Trump as much as their Republican Senator or Senate candidate evidently does.

The attacks would be effective because they would obviously be accurate.
Trump has cited, as precedent for his proposed mass exclusion of Muslims, World War II Japanese-American internment camps, one of the nastiest human rights violations in America’s history. President Trump might be badly inconvenienced by a Supreme Court that took its job seriously. Civil liberties are a bother. Does your Republican Senator agree that it’s okay to put American citizens in concentration camps on the basis of their ancestry? If he doesn’t think that, why is he so keen to give a Supreme Court appointment to a man who does?

How segregation works in NYC schools /vox

Friday, March 18, 2016

J&J hammered on hip implants //Legal Examiner

PrawfsBlawg: Judge Garland and the Future of Human Rights Litigation

PrawfsBlawg: Judge Garland and the Future of Human Rights Litigation

by Seth Davis

 It’s hard to deny that Judge Merrick Garland, President Obama’s nominee to the Supreme Court, is “is an amazingly qualified, brilliant judge,” even for commentators who think he’s a “bad choice.” He shouldn’t be blocked by Senate Republicans. He probably will be, though perhaps we’ll see a lame-duck hearing and confirmation vote. For now, there’s much to see --- and like --- in his jurisprudence on the D.C. Circuit.

For instance, I’d say his dissenting opinion in Saleh v. Titan Corpis one to like. The question in that case was whether Iraqi nationals who were abused at the Abu Ghraib military prison could sue private military contractors for wrongs that both President George W. Bush and President Obama “repeatedly and vociferously condemned.” The panel held they couldn’t, reasoning that “tort law is preempted on the battlefield.” Judge Garland objected that the “country’s legal system [should] take its ordinary course and provide a remedy for those who were wrongfully injured.” Individuals who “were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors” should have a remedy under a state’s “traditional, generally applicable tort law.”
We shouldn’t lightly assume, in other words, that the United States’ foreign policy preempts an individual’s right to a remedy under state law. To the contrary, Judge Garland suggested, “facially neutral state tort law” may be an important source of remedies for international human rights violations.
If Judge Garland’s dissent in Saleh is any guide, then a Justice Garland might shift the future of human rights litigation in the United States. In recent years the Supreme Court has restricted human rights litigation under the Alien Tort Statute. In Kiobel v. Royal Dutch Petroleum Co., for example, the Court applied the presumption against extraterritoriality to limit claims in federal court under the ATS. State law might, however, step in to fill the remedial gap, as this symposium in the UC Irvine Law Review explored. In the “ordinary course,” as Judge Garland put it, our legal system “provide[s] a remedy for those who were wrongfully injured.” Whether the Court will let our system run its ordinary course in human rights cases is but one of many controversial questions that may be at stake with this 

Johnson & Johnson hit with $498 million verdict in Pinnacle hip implant case

J&J hit with $498 million verdict in Pinnacle  hip implant  case
by Sindu Sindhar
Law360, New York (March 17, 2016, 12:57 PM ET) -- Johnson & Johnson was hit with an eye-popping $497.6 million verdict Thursday in the second bellwether trial in the multidistrict litigation over allegedly defective Pinnacle hip prosthetics manufactured by its DePuy Orthopaedics Inc. unit, a major win for the plaintiffs in the litigation who had this time put forth the consolidated claims of five patients alleging problems from the devices.

After a two-month trial and days of deliberations, a Dallas jury found in favor of all five plaintiffs in the trial, delivering a verdict that included $360 million in punitive damages, lead plaintiffs' attorney Mark Lanier of the Lanier Law Firm confirmed to Law360 Thursday.

The punitive damages are expected to be reduced to $10 million based on the statutory cap in Texas, according to John Beisner of Skadden Arps Slate Meagher & Flom LLP, an attorney for J&J. The plaintiffs had tried to argue that the commercial bribery exception to the Texas statutory punitive damages cap would apply, claiming that one of the surgeons who had treated some of the trial plaintiffs was a "highly paid" consultant for DePuy and J&J and that those payments swayed his decisions to use the devices. The jury on Thursday rejected the commercial bribery allegations.

The jury found for the plaintiffs on their failure-to-warn and design defect claims, holding both J&J and DePuy liable, Lanier said. About $240 million of the punitive damages were assessed directly against J&J while DePuy is on the hook for the other $120 million. The $140 million in compensatory damages will be divided among the plaintiffs based on the extent of their individual injuries, Lanier said. Juries are generally just asked to award damages without factoring in the cap, which the judge usually applies later, after sometimes asking the parties to brief him on the issue.

"The jury was very careful and deliberate in the way they went about working through the evidence, and it took a week to come to the conclusion," Lanier told Law360. "I'm not surprised by the outcome."

The defendants will appeal the verdict, according to DePuy spokeswoman Mindy Tinsley. The products at issue included the Pinnacle Acetabular Cup System, a metal hip implant product with a cobalt-chromium liner that the company brands the "Ultamet" liner.

“We have no greater responsibility than to the patients who use our products, and our goal is to create medical innovations that help people live more active and comfortable lives,” Tinsley said. “DePuy acted appropriately and responsibly in the design and testing of ULTAMET Metal-on-Metal, and the product is backed by a strong record of safety and effectiveness in reducing pain and restoring mobility for patients suffering from chronic hip pain.”

The trial had involved the consolidated claims of plaintiffs Margaret Aoki, Jay Christopher, Donald Greer, Richard Klusmann and Robert Peterson, who all underwent hip arthroplasty, where a hip joint is replaced with a prosthetic. In their case, the prosthetics were DePuy Pinnacle metal-on-metal devices, which they alleged cause serious health problems including inflammation of surrounding tissues, bone erosion and metallosis, a toxic condition allegedly caused when the device’s components grind against each other and shed metal debris into the bloodstream.

Beisner indicated that he believed J&J would prevail on its arguments at appeal to the Fifth Circuit.

"We expect this to be a pyrrhic victory for plaintiffs’ counsel as the grounds for appeal are strong and the punitive damages will be reduced to around $10 million subject to the Texas statutory cap," he said Thursday.

U.S. District Judge Ed Kinkeade, who is presiding over the trial and the MDL, had ruled on Jan. 8 that the five cases had enough issues in common that they would be consolidated for trial. In particular, all five plaintiffs here underwent similar implantation surgeries, their doctors received similar warnings, and the patients all alleged similar injuries, according to his ruling.

Aoki, who had filed her suit in March 2013, was implanted with a DePuy Pinnacle metal-on-metal device in 2010. She contended that after DePuy's other hip implant product, the DePuy ASR Hip System, was recalled in 2010, J&J doubled down on marketing the metal-on-metal device as a replacement.

She claimed that the ASR recall spurred J&J into "damage control" mode, where it assured surgeons that the metal-on-metal device was safe but knew it posed the risk of complications including metallosis. She claimed in particular that more than 1,300 adverse event complaints had been made to the U.S. Food and Drug Administration about the devices — among the roughly 150,000 such devices sold — and that J&J knew that patients implanted with those devices wound up with unsafe levels of cobalt and chromium in their bloodstream.

The first bellwether trial in the MDL ended in a significant verdict for J&J, in which a federal jury in October 2014 unanimously cleared DePuy Orthopedics of similar accusations.

The jury had found in favor of Johnson & Johnson on all counts, rejecting plaintiff Kathy Herlihy-Paoli's claims of negligence, defective design, failure to warn and violations of the Montana Consumer Protection Act after an eight-week trial in Dallas. The product at issue in the trial was the Ultamet metal-on-metal articulation.

The MDL was consolidated in May 2011, when the U.S. Judicial Panel on Multidistrict Litigation centralized three actions and identified 54 potential tag-along actions. There are now more than 8,000 cases in the MDL, all involving Pinnacle devices that contain sockets with metal, ceramic or polyethylene lining, according to court documents.

The plaintiffs are represented by W. Mark Lanier of The Lanier Law Firm, Larry Boyd, Wayne Fisher and Justin Presnal of Fisher Boyd Johnson & Huguenard LLP, Richard J. Arsenault of Neblett Beard & Arsenault and Jayne Conroy of Simmons Hanly Conroy.

Johnson & Johnson and DePuy are represented by Michael V. Powell and Seth M. Roberts of Locke Lord LLP and John H. Beisner, Stephen J. Harburg, Jessica Davidson Miller and Geoffrey M. Wyatt of Skadden Arps Slate Meagher & Flom LLP.

The five cases consolidated for trial are Aoki v. Johnson & Johnson Services et al., case number 3:13-cv-01071; Christopher et al v. Johnson & Johnson Services Inc. et al., case number 3:14-cv-01994; Greer v. DePuy Orthopaedics Inc. et al., case number 3:12-cv-1672; Klusmann et al v. DePuy Orthopaedics Inc. et al., case number 3:11-cv-02800; and Peterson et al v. Johnson & Johnson Services Inc. et al, case number 3:11-cv-01941, all in the U.S. District Court for the Northern District of Texas.

The MDL is In re: DePuy Orthopaedics Inc. Pinnacle Hip Implant Products Liability Litigation, case number 3:11-md-02244, in the U.S. District Court for the Northern District of Texas.

Wednesday, March 16, 2016

GM Ignition Engineers Gagged By Orwellian Rules, Jury Told - Law360

GM Ignition Engineers Gagged By Orwellian Rules, Jury Told - Law360

Law360, New York (March 15, 2016, 11:20 PM ET) -- As GM refrained from urgently investigating reports of failing ignition switches, engineers deep within the organization were effectively prevented from sounding alarms by a policy that forbade terms like “problem,” “bad” and “rolling sarcophagus,” a former automotive industry engineer testified in a bellwether trial Tuesday.

(Credit: AP)
The company is engaged in a three-week trial over the claims of Louisiana driver Dionne Spain and passenger Lawrence Barthelemy, whose Saturn roadster spun out on an icy bridge two years ago. They walked away with few injuries. But the plaintiffs blame the now-infamous ignition switch, whose hair trigger could shut down the car while it was moving, even at high speeds. General Motors LLCclaims the switch wasn’t involved in Spain and Barthelemy's crash.

Slides shown in court Tuesday laid out a list of terms engineers were directed to avoid. They included “safety,” “big time,” “good,” “defect,” “ghastly,” “Challenger,” “powder keg,” “deathtrap,” “widow-maker” and “Cobain.”

“This practice of limiting how engineers can describe situations was one of the factors that allowed this situation to stay down and not get the attention that it needed for such a long time,” former Delphi engineer Steve Loudon told the court. Loudon spent his career in automotive electronics, writing software that controls airbags, among other things. He’s now a frequent expert witness in car-defect cases.

“You’re limiting [engineers] from being as precise and accurate as they could be,” Loudon said.

But in a deposition played soon after, a GM employee offered a defense of the policy. “‘Problem’ is judgmental: You’ve already decided that there was a problem,” engineer Eric Buddrius said on video.

Meanwhile on Tuesday, on a different floor of the same building, a Second Circuit panelappeared troubled by the landmark bankruptcy ruling that largely shielded the post-Chapter 11 version of General Motors from liability tied to the deadly ignition-switch defects, with one appellate judge wondering how the decision could have been made in the bankruptcy context at all.

2nd Circ. Has Doubts About New GM's Ch. 11 Liability Shield - Law360

2nd Circ. Has Doubts About New GM's Ch. 11 Liability Shield - Law360

2nd Circ. Has Doubts About New GM's Ch. 11 Liability Shield - Law360

Law360, New York (March 15, 2016, 3:39 PM ET) -- A Second Circuit panel appeared troubled Tuesday by a landmark bankruptcy ruling that largely shields the post-Chapter 11 version of General Motors from liability tied to deadly ignition-switch defects, with one appellate judge wondering how the decision could have been made in the bankruptcy context at all.

(Credit: AP)
At a closely watched appeal in which various claimant groups are seeking leave to target General Motors LLC, or New GM, Circuit Judges Chester J. Straub, Denny Chin and Susan L. Carney all expressed displeasure at U.S. Bankruptcy Judge Robert Gerber's April 2015 decision to wall off the $47 billion auto giant.

That decision came just months before a $900 million settlement between Old GM and criminal prosecutors.

Front-and-center in Tuesday's arguments was a stipulation between Chapter 11 GM and plaintiffs in which, according to Judge Gerber's opinion, "at least 24 Old GM personnel (all of whom were transferred to New GM), including engineers, senior managers and attorneys, were informed or otherwise aware of the ignition switch defect" before a 2009 sale agreement rescued the automaker.

“Old GM knew,” Judge Straub told the automaker's counsel Arthur Jay Steinberg of King & Spalding LLP. “The very same people who knew went to New GM. No one told the court. No one told the claimants. How are we to deal with that?”

Tuesday, March 15, 2016

Senior NFL official acknowledges football's link to brain disease CTE | Sport | The Guardian

Senior NFL official acknowledges football's link to brain disease CTE | Sport | The Guardian

An NFL official has acknowledged a link between football and a degenerative brain disease for the first time.
Jeff Miller, the NFL’s senior vice president for health and safety, spoke about the connection during an appearance Monday at a congressional committee’s round table discussion about concussions.
Representative Jan Schakowsky (D-Illinois) asked Miller: “Do you think there is a link between football and degenerative brain disorders like CTE?”
Miller, who was referring to chronic traumatic encephalopathy (CTE), began by discussing the work of Boston University neuropathologist Dr Ann McKee, who has found CTE in the brains of 90 out of 94 former pro football players.
“Well, certainly, Dr McKee’s research shows that a number of retired NFL players were diagnosed with CTE, so the answer to that question is certainly ‘yes,’ but there are also a number of questions that come with that,” Miller said.
Schakowsky repeated the question: “Is there a link?”
“Yes. Sure,” Miller responded.
The NFL has not previously linked playing football to CTE, a disease linked to repeated brain trauma and associated with symptoms such as memory loss, depression and progressive dementia. It can only be detected after death. Among the players found to have CTE in their brains were Hall of Famers Junior Seau and Ken Stabler.
During Super Bowl week, Dr Mitch Berger, a member of the NFL’s head, neck and spine committee, would not draw a direct line from football to CTE.